Appeal, No. 82, March T., 1950, from judgment of Superior Court No. 118, April T., 1949, reversing judgment of Court of Common Pleas of Allegheny County, July T., 1946, No. 513, in case of Margaret Lanzetta Littler, Exrx., Estate of Carl W. Littler, Deceased et al v. Everett B. Dunbar, trading as Acme Real Estate Company et al. Judgment reversed; reargument refused August 16, 1950.
Louis Vaira, for appellants.
John A. Metz, Jr., with him John A. Metz and Metz & Metz, for appellees.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from the judgment of the Superior Court, reversing the judgment of the court of common pleas of Allegheny County. The suit is in trespass for fraud and deceit. Defendant is a real estate broker. The fraud and deceit charged by plaintiffs consists of alleged misrepresentations of defendant's agent in connection with a contract for the sale of real estate. A trial on the merits resulted in a verdict for the plaintiffs for the amount of the down money and interest, which the court below sustained. On appeal to the Superior Court the judgment was reversed in a unanimous opinion by Judge HIRT, 166 Pa. Superior Ct. 271. The basic reason for the reversal is stated in the opinion, at p. 273, as follows:
"Under the Pennsylvania rule a principal is not liable in deceit for his agent's false representations where he has not authorized nor participated in them nor knowingly permitted the agent to make them. Proof of scienter on the part of the principal at the time of the misrepresentation is an essential part of the plaintiffs' case."
It was further stated in the opinion, at p. 274: "The plaintiffs were within their rights in rescinding the contract induced by the false representations of defendant's agent. Sutton v. Morgan et al., 158 Pa. 204, 27 A. 894; Meyerhoff v. Daniels, 173 Pa. 555, 34 A. 298. If then they
had sued in assumpsit, on the theory of money had and received, they would have brought themselves squarely within the rule of Ohlbaum v. Mayer et ux., 285 Pa. 260, 131 A. 858 and would have been entitled to recover against this appellant since he benefited by his agent's fraud and kept the hand payment."
We are in complete accord with the opinion for the reasons given and cases cited.
But in Lichow w. Sowers, 334 Pa. 353, 6 A.2d 285, this Court held that under the Act of May 10, 1871, P.L. 265, the form of an action is amendable at any stage of the proceedings. Mr. Justice HORACE STERN said, p. 355: "Probably a suit in assumpsit would have been more appropriate, but the form of action is amendable at any stage of the proceedings: Act of May 10, ...